Citation Nr: 1003025
Decision Date: 01/21/10 Archive Date: 02/01/10
DOCKET NO. 06-04 352 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Entitlement to an effective date earlier than September 8,
2003, for the award of a 20 percent disability rating for
lumbosacral strain with disc herniation.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M.G. Mazzucchelli, Counsel
INTRODUCTION
The Veteran served on active duty from August 1968 to
September 1971.
This matter comes to the Board of Veterans' Appeals (Board)
from a May 2005 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Fort Harrison, Montana,
which, in pertinent part, denied an effective date earlier
than September 8, 2003 for the award of a 20 percent rating
for service-connected lumbosacral strain with disc
herniation.
FINDINGS OF FACT
1. The RO received the Veteran's claim requesting an
increased rating of his low back disability on February 12,
2003.
2. The criteria for a 20 percent rating for lumbosacral
strain with disc herniation were first shown on VA
examination in February 2004.
CONCLUSION OF LAW
An effective date earlier than September 8, 2003, may not be
assigned for the grant of a 20 percent disability rating for
lumbosacral strain with disc herniation. 38 U.S.C.A. §
5110(a) (West 2002); 38 C.F.R. § 3.400(o)(2) (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Notice and Assistance
Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction, VA
is required to notify the appellant of the information and
evidence not of record that is necessary to substantiate the
claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159;
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006). The notice should also address
the rating criteria or effective date provisions that are
pertinent to the appellant's claim. Dingess v. Nicholson, 19
Vet. App. 473 (2006).
For an increased-compensation claim, section 5103(a)
requires, at a minimum, that the Secretary (1) notify the
claimant that to substantiate a claim, the claimant must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment; (2) provide examples of the types of
medical and lay evidence that may be obtained or requested;
(3) and further notify the claimant that "should an increase
in disability be found, a disability rating will be
determined by applying relevant [DC's]," and that the range
of disability applied may be between 0% and 100% "based on
the nature of the symptoms of the condition for which
disability compensation is being sought, their severity and
duration, and their impact upon employment." Vazquez-Flores
v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds
sub nom. Vazquez-Flores v. Shinseki, --- F.3d ----, No.2008-
7150, (Fed.Cir. Sept. 4, 2009).
The Veteran was sent substantially complete notice in June
2005, subsequent to the initial action on appeal. Although
the appellant received inadequate notice, and that error is
presumed prejudicial, the record reflects that the purpose of
the notice was not frustrated. Vazquez-Flores, 22 Vet. App.
at 49.
The Veteran was notified that his claim was awarded with an
effective date of September 8, 2003, which is prior to the
date it was factually ascertainable that an increase in
disability occurred, and a 20 percent rating was assigned.
He was provided notice how to appeal that decision, and he
did so. He was provided a statement of the case that advised
him of the applicable law and criteria required for an
earlier effective date and he demonstrated his actual
knowledge of what was required to substantiate a claim in his
arguments included in his appeal. Although he was not
provided pre-adjudicatory notice that he would be assigned an
effective date in accordance with the facts found as required
by Dingess, the date he was assigned is the earliest
permitted by law. 38 U.S.C.A. § 5110(a).
Moreover, the record shows that the appellant was represented
by a Veteran's Service Organization and its counsel
throughout the adjudication of the claim. Overton v.
Nicholson, 20 Vet. App. 427 (2006). Thus, based on the
record as a whole, the Board finds that a reasonable person
would have understood from the information that VA provided
to the appellant what was necessary to substantiate his
claim, and as such, that he had a meaningful opportunity to
participate in the adjudication of his claim such that the
essential fairness of the adjudication was not affected.
VA has obtained service treatment records and VA treatment
records, and afforded the appellant physical examinations to
assess the severity of his service-connected disability. All
known and available records relevant to the issue on appeal
have been obtained and associated with the appellant's claims
file; and the appellant has not contended otherwise. VA has
substantially complied with the notice and assistance
requirements and the appellant is not prejudiced by a
decision on the claim at this time.
Earlier Effective Date Claim
Service connection for lumbosacral strain was granted in a
rating decision dated in January 1996. An initial 10 percent
rating was assigned from November 1995. An unappealed rating
decision in October 1997 continued the 10 percent rating.
On February 12, 2003, the RO received the Veteran's claim for
an increased rating for his lumbosacral spine disability.
Following an April 2003 VA examination, a rating decision
dated in May 2003 denied the Veteran's claim for an increased
rating.
On September 8, 2003, the RO received a statement from the
Veteran on which he requested "VA to review the following
evidence because I am seeking an increase from the May 27,
2003 rating decision which continued my 10% rating on my
back."
A VA examination was conducted in February 2004.
On May 26, 2004, the RO received a statement from the Veteran
that referenced "rating decision dated May 27, 2004" and
stated that "I do not agree with the VA's rating decision
assigning my lumbosacral strain as 10% disabling." It
appears that the Veteran was actually referring to the May
27, 2003 notice letter that informed him of the RO's May 2003
rating decision.
In an August 2004 rating decision, the RO granted a 20
percent rating for lumbosacral strain with disc herniation.
This rating was assigned from September 8, 2003, which the RO
described as the date of the Veteran's claim for increased
rating.
The effective date provisions for awards of increased
disability compensation include a general rule which is that
an award based on a claim for increase of compensation "shall
be fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of application therefor."
38 U.S.C.A. § 5110(a). The corresponding VA regulation
expresses this rule as "date of receipt of claim or date
entitlement arose, whichever is later." 38 C.F.R. §
3.400(o)(1).
The law provides an exception to this general rule governing
claims "for increase" which exception governs awards "of
increased compensation." 38 U.S.C.A. § 5110(a), (b)(2). If
the evidence shows that the increase in disability occurred
prior to the date of receipt of claim, the RO may assign the
earliest date as of which it is ascertainable that the
increase occurred as long as the claim for the increased
disability rating was received within a year of the date that
the increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §
3.400(o)(2).
Thus, determining whether an effective date assigned for an
increased rating is correct or proper under the law requires
(1) a determination of the date of the receipt of the claim
for the increased rating and (2) a review of all the evidence
of record to determine when an increase in disability was
"ascertainable." Hazan v. Gober, 10 Vet. App. 511 (1992).
The Veteran's February 2003 claim for increase was
accompanied by medical evidence relevant to his lumbosacral
spine disability. He was also provided with VA examinations
in April 2003 and February 2004. The RO determined that the
increase in disability warranting a 20 percent rating was
factually ascertainable based on the February 2004 VA
examination findings, and assigned what it determined to be
the date of claim for increase, September 8, 2003, as the
effective date of the award.
While the RO has construed the September 8, 2003, statement
from the Veteran as a claim for increase, the Board finds
that that document, as well as the May 2004 statement from
the Veteran, would constitute notices of disagreement with
the May 2003 rating decision that denied a rating in excess
of 10 percent for the service connected lumbosacral spine
disability. Thus, February 12, 2003, the date of the
Veteran's prior claim for an increased rating, is the
relevant date of claim for effective date purposes.
Under controlling law and regulation, the Board must review
the evidence dating one year prior to determine the "earliest
date as of which," within the year prior to the claim, an
increase in disability was factually ascertainable.
During the pendency of the Veteran's claim, the criteria for
evaluating disabilities of the spine were revised.
Generally, in a claim for an increased rating, where the
rating criteria are amended during the course of the appeal,
the Board considers both the former and the current schedular
criteria; however, should an increased rating be warranted
under the revised criteria, that award may not be made
effective before the effective date of the change. See Kuzma
v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-
2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (April 10, 2000).
Under the criteria in effect prior to September 26, 2003, the
regulations provided that complete ankylosis of the spine, at
an unfavorable angle with marked deformity warranted a 100
percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5286
(2002). Complete ankylosis at a favorable angle warranted a
60 percent rating. Ankylosis of the lumbar spine was
evaluated as 40 percent disabling where it was favorable and
as 50 percent disabling where it was unfavorable. 38 C.F.R.
§ 4.71a, Diagnostic Code 5289 (2002).
Mild limitation of lumbar spine motion warranted a 10 percent
rating, a 20 percent rating was warranted when such
limitation of motion was moderate, and a maximum rating of 40
percent was warranted when it was severe. 38 C.F.R. § 4.71a,
Diagnostic Code 5292 (2002).
Similarly, prior to September 26, 2003, a 10 percent rating
was assigned for lumbosacral strain with characteristic pain
on motion and a 20 percent rating was assigned for
lumbosacral strain with muscle spasm on extreme forward
bending, loss of lateral spine motion, unilateral, in
standing position. A maximum 40 percent rating was warranted
for lumbosacral strain that was severe, with listing of the
whole spine to the opposite side, a positive Goldthwaite's
sign, marked limitation of forward bending in a standing
position, loss of lateral motion with osteoarthritic changes,
and narrowing or irregularity of the joint space; a 40
percent evaluation was also warranted when only some of these
symptoms are present if there is also abnormal mobility on
forced motion. 38 C.F.R. § 4.71a, Diagnostic Cod 5295
(2002).
Under the rating criteria in effect prior to September 23,
2002, 38 C.F.R. § 4.71a, Diagnostic Code 5293 provided a 10
percent rating for mild intervertebral disc syndrome
symptoms. A 20 percent rating was warranted for moderate
symptoms with recurring attacks. A 40 percent evaluation
required severe symptoms with recurring attacks and
intermittent relief. Pronounced intervertebral disc syndrome
with persistent symptoms compatible with sciatic neuropathy
with characteristic pain and demonstrable muscle spasm,
absent ankle jerk, or other neurological findings appropriate
to the site of the diseased disc, and little intermittent
relief, warranted a 60 percent evaluation.
The regulations regarding intervertebral disc syndrome were
revised effective September 23, 2002. Under the revised
regulations, intervertebral disc syndrome was evaluated as
follows:
Evaluate intervertebral disc syndrome (preoperatively or
postoperatively) either on the total duration of
incapacitating episodes over the past 12 months or by
combining under Sec. 4.25 separate evaluations of its
chronic orthopedic and neurologic manifestations along with
evaluations for all other disabilities, whichever method
results in the higher evaluation.
With incapacitating episodes having a total duration of at
least one week but less than two weeks during the past 12
months (10 percent);.
With incapacitating episodes having a total duration of at
least two weeks but less than four weeks during the past 12
months (20 percent);
With incapacitating episodes having a total duration of at
least four weeks but less than six weeks during the past 12
months (40 percent);
With incapacitating episodes having a total duration of at
least six weeks during the past 12 months (60 percent); 38
C.F.R. § 4.71a, Diagnostic Code 5293 (2002).
For purposes of evaluations under 5293, an incapacitating
episode is a period of acute signs and symptoms due to
intervertebral disc syndrome that requires bed rest
prescribed by a physician and treatment by a physician.
"Chronic orthopedic and neurologic manifestations" means
orthopedic and neurologic signs and symptoms resulting from
intervertebral disc syndrome that are present constantly, or
nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1)
(2002).
When evaluating on the basis of chronic manifestations,
evaluate orthopedic disabilities using evaluation criteria
for the most appropriate orthopedic diagnostic code or codes.
Evaluate neurologic disabilities separately using evaluation
criteria for the most appropriate neurologic diagnostic code
or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (2)
(2002).
If intervertebral disc syndrome is present in more than one
spinal segment, provided that the effects in each spinal
segment are clearly distinct, evaluate each segment on the
basis of chronic orthopedic and neurologic manifestations or
incapacitating episodes, whichever method results in a higher
evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic
Code 5293, Note (3) (2002).
The regulations regarding diseases and injuries to the spine
were revised effective September 26, 2003. Under these
revised regulations, the back disability is evaluated under
the formula for rating intervertebral disc syndrome based on
incapacitating episodes, diseases and injuries to the spine
are to be evaluated under diagnostic codes 5235 to 5243 as
follows:
For forward flexion of the thoracolumbar spine greater than
60 degrees but not greater than 85 degrees, or forward
flexion of the cervical spine greater than 30 degrees but not
greater than 40 degrees, or combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater
than 235 degrees, or combined range of motion of the cervical
spine greater than 170 degrees but not greater than 335
degrees, or muscle spasm, guarding, or localized tenderness
not resulting in abnormal gait or abnormal spinal contour, or
vertebral body fracture with loss of 50 percent or more of
the height (10 percent).
For forward flexion of the thoracolumbar spine greater than
30 degrees but not greater than 60 degrees, or forward
flexion of the cervical spine greater than 15 degrees but not
greater than 30 degrees, or the combined range of motion of
the thoracolumbar spine not greater than 120 degrees, or the
combined range of motion of the cervical spine not greater
than 170 degrees, or muscle spasm or guarding severe enough
to result in an abnormal gait or abnormal spinal contour such
as scoliosis, reversed lordosis, or abnormal kyphosis (20
percent);
Unfavorable ankylosis of the entire cervical spine, or
forward flexion of the thoracolumbar spine to 30 degrees or
less, or with favorable ankylosis of the entire thoracolumbar
spine (40 percent);
Unfavorable ankylosis of the entire thoracolumbar spine (50
percent);
Unfavorable ankylosis of the entire spine (100 percent); 38
C.F.R. § 4.71a, General Rating Formula for Diseases and
Injuries of the Spine (2009).
When evaluating diseases and injuries of the spine, any
associated objective neurologic abnormalities, including, but
not limited to, bowel or bladder impairment, should be
evaluated separately, under an appropriate diagnostic code.
38 C.F.R. § 4.71a, General Rating Formula for Diseases and
Injuries of the Spine, Note (1) (2009).
For VA compensation purposes, normal forward flexion of the
thoracolumbar spine is zero to 90 degrees, extension is zero
to 30 degrees, left and right lateral flexion are zero to 30
degrees, and left and right lateral rotation are zero to 30
degrees. The normal combined range of motion of the
thoracolumbar spine is 240 degrees. The normal ranges of
motion for each component of spinal motion provided in this
note are the maximum that can be used for calculation of the
combined range of motion. 38 C.F.R. § 4.71a, General Rating
Formula for Diseases and Injuries of the Spine, Note (2)
(2009).
An April 2001 VA orthopedic consultation showed full range of
spine motion with no spasm and no radiculopathy.
In October 2002, the Veteran showed tenderness over the lower
lumbosacral spine. Straight leg raising test was negative
and there was no muscle weakness.
In January 2003, he had complaints of back pain and muscle
spasms. Examination showed full range of motion with minimal
pain on extension, and no muscle atrophy, swelling, or
discoloration. Sensation and neurological testing were
intact.
A March 2003 orthopedic consultation noted no radiculopathy
and normal gait. Nerve conduction studies and
electromyography in April 2003 were interpreted as normal
studies.
A computer tomography (CT) scan in March 2003 showed large
left-sided L4-5, L5-S1 disc herniation extrusion with
sequestration, severe L5 nerve root compression, and both
foraminal stenoses as well as L5 lateral stenosis.
An April 2003 VA examination showed normal gait and heel and
toe walking. There was mild tenderness with palpation of the
paraspinal muscles. Flexion was to 80 degrees; extension to
30 degrees with pain; lateral bend to 40 degrees without
pain; and rotation 35 degrees without pain. Patellar
reflexes were 2+ bilaterally. There was negative straight
leg raising test and no quadriceps atrophy.
VA examination in February 2004 showed flexion to 60 degrees
and extension to 20 degrees, with no evidence of spasm.
Limitation of flexion of the lumbar spine to 60 degrees,
which was the basis for the 20 percent rating at issue here,
was first demonstrated on the February 2004 VA examination.
That the Veteran met the criteria for the next higher rating
provided by law for his disability had not been previously
shown under either the old or current criteria for rating his
low back disability. Specifically, the earlier evidence did
not show moderate limitation of motion, ankylosis,
demonstrated muscle spasm, or more than mild intervertebral
disc syndrome.
The RO awarded the increase back to the date of the September
2003 correspondence, which while not the actual date of claim
at issue, is still earlier than the date as of which it is
ascertainable that the increase occurred. There is no
evidentiary basis for making the increased award, 20 percent,
effective prior to September 8, 2003. The claim for earlier
effective date is denied.
ORDER
An effective date prior to September 8, 2003, for a 20
percent rating for service-connected lumbosacral strain with
disc herniation is denied.
____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs